Mayweather v. Wallace

• Citation: 159 P.2d 529,195 Okla. 587,1945 OK 148
• Decision Date: 08 May 1945
• Docket Number: Case Number: 31790
• Parties: MAYWEATHER v. WALLACE
• Court: Oklahoma Supreme Court

1945 OK 148

159 P.2d 529

195 Okla. 587

MAYWEATHER v. WALLACE

Case Number: 31790

Supreme Court of Oklahoma

Decided: May 8, 1945

Syllabus

¶0 WILLS--Conclusiveness of probate after expiration of one year.

Where husband died within one year after deceased's wife's will had been admitted to probate, the heirs of the husband have no right, after the expiration of one year from the probate of the will (58 O.S. 1941 §§ 61 and 67) to contest the validity of the will of testatrix nor the probate thereof.

Appeal from District Court, Tulsa County; Oras A. Shaw, Judge.

In the matter of the estate of Lete Kolvin Stevens, deceased; James Isaiah Wallace, executor. Special proceeding by Floyd and Willie Mayweather, who from an adverse judgment appeal. Affirmed.

Ward & Ward, of Tulsa, and A. P. Nugent, of Kansas City, Mo., for plaintiffs in error.

Hudson & Hudson and B. C. Franklin, all of Tulsa, for defendant in error.

RILEY, J.

¶1 Floyd and Willie Mayweather appeal from dismissal of their special proceeding filed in the county court of Tulsa county, decided against them, appealed and tried de novo in the district court, attacking the validity of a will after probate.

¶2 Lete Kolvin Stevens died March 30, 1930, a resident of Tulsa county, testate, without issue, and leaving surviving her a husband, Joseph Stevens, together with a half sister and other kindred, exclusive of appellants.

¶3 The will of testatrix was admitted to probate June 11, 1930, upon the petition of the surviving husband named in the will as a legatee. James Isaiah Wallace was appointed executor of the estate of testatrix.

¶4 Among other property devised and bequeathed by the will there was an allotment in Creek county which had come to testatrix by reason of her enrollment as a member of the Creek Tribe of Indians. According to the will of testatrix, that land was devised in equal shares to the surviving husband, Joseph Stevens, and Joseph E. Thompson and Charlotte Wallace. The present controversy concerns $150,000 paid to the executor and his attorneys out of a total sum of $800,000 paid to the executor, interveners, and their attorneys, in settlement of litigation and in accounting for oil and gas extracted from the allotment.

¶5 Appellants herein intervened in that litigation, and in consideration of settlement and payment to them,, they waived and relinquished to payors, their right, title, and interest to any of the funds paid to the executor.

¶6 The petition of appellants was filed in the county court of Creek county on March 30, 1943, more than 13 years after the probate of the will of testatrix.

¶7 The appellants are the nephews of Joseph Stevens, testatrix's surviving husband who died intestate in 1931 but within a year subsequent to the death of his said wife. Appellants are neither next of kin nor legatees named in the will of testatrix. Assuming, without deciding, that they are interested parties within contemplation of the statute, 58 O.S. 1941 §§ 61-67, it is by reason of their relationship as heirs -if Joseph Stevens, deceased, and their right to a distributing share of the estate of testatrix devised to Joseph Stevens in his lifetime. It is possible that appellants seek to increase that share by these special proceedings.

¶8 The judgment from which this appeal comes denied appellants' contest because of the limitation of one year after the probate of the will of testatrix as provided by statute, 58 O.S. 1941 §§ 61 and 67. The judgment appealed from also denied and dismissed appellant's special proceedings because appellants , having waived and disclaimed to their adverse settling adversaries in the litigation involving the funds in dispute as paid to the executor, it was the view of the trial court that the waiver and disclaimer of the appellants, as executed by them to the settlers, inured to the benefit of the executor and to estop appellants in these special proceedings.

¶9 Likewise, the trial court was of the view that appellants by reason of their relinquishment of right and interest in the assets of the estate of testatrix, now in the hands of the executor, and by reason of their kinship only with the spouse of testatrix, are not within contemplation of the statutes, supra, an interested party.

¶10 For the purpose of our decision and by reason of the fact that the motion of appellees to strike the appellants' petition was treated as a demurrer, we shall consider only the statute providing the right and limiting the exercise thereof. They are:

¶11 Sec. 61. "When a will has been admitted to probate, any person interested therein may at any time within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing containing his allegations...."

¶12 Sec. 67. "If no person, within one year after the probate of a will, contests the same or the validity thereof, the probate of the will is conclusive, saving to infants and persons of unsound mind, a like period of one year after their respective disabilities are removed."

¶13 The general rule is:

"...a probate court, under a statute conferring on such courts the power to modify or set aside their orders and decrees within a prescribed period after rendition, has power to vacate its order or decree and revoke probate only within the specified period from its rendition; and a statutory limitation on the time within which a person may apply for vacation of a probate order or decree operates not only on the parties proceeding, but also on the jurisdiction of the court." 68 C.J. 1148.

"A will regularly admitted to probate by the county court cannot be contested after one year, under section 1121, C.O.S. 1921 (O.S. 1931, §1116) unless the contesting party comes within the excepted class." Reeder, Adm'x, et al. v. Reeder et al., 159 Okla. 122, 14 P.2d 684; In re Turinsky's Estate, 187 Okla. 371, 103 P.2d 86.

¶14 In Re Dunsmuir's Estate, IA9 Cal. 67, 84 P. 657, it is held:

"Where a motion to vacate an order admitting a will to probate is not made within the time prescribed by Code Civ. Proc. § 473, and the order admitting the will to probate is not void on its face, an order granting such motion is erroneous and void."

¶15 In Re Estate of Duffy, 228 Iowa, 426, 128 A.L.R. 943, it is said:

"It is generally recognized by the courts and other authorities that no one has any standing to object to the probate of a will, or to bring any action

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